DEPARTMENT OF HEALTH AND HUMAN SERVICES PUBLIC HEALTH SERVICE INDIAN HEALTH SERVICE STANDING ROCK PUBLIC HEALTH SERVICE HOSPITAL, FORT YATES, NORTH DAKOTA and LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 580, AFL-CIO

DEPARTMENT OF HEALTH AND HUMAN SERVICES
PUBLIC HEALTH SERVICE
INDIAN HEALTH SERVICE
STANDING ROCK PUBLIC HEALTH SERVICE HOSPITAL, FORT YATES,
NORTH DAKOTA
Respondent
and

Case No. CH-CA-00693

LABORERS' INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 580, AFL-CIO
Charging Party

John F. Gallagher, Esquire
For the General Counsel
Before: SUSAN E. JELEN
Administrative Law Judge

DECISION ON MOTION FOR SUMMARY
JUDGEMENT

On July 20, 2001, the Regional Director for the Chicago Region
of the Federal Labor Relations Authority (FLRA) issued a Complaint
and Notice of Hearing which was duly served by certified mail upon
the named Respondent. The Complaint alleged that the Department of
Health and Human Services, Public Health Service, Indian Health
Service, Standing Rock Public Health Service Hospital, Fort Yates,
North Dakota (herein called Respondent) violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute
(the Statute), 5 U.S.C. § 7116(a)(1) and (5), by unilaterally
implementing a housing rental rate increase affecting employees
represented by the Laborers' International Union of North America,
Local 580, AFL-CIO (herein called Union), without providing the
Union with notice and opportunity to negotiate over this change to
the extent required by the Statute. Further the complaint alleges
that the Union requested Respondent to negotiate concerning the
above change on August 18, 2000 and that the Respondent failed to
respond to the Union's request to negotiate. A hearing was
scheduled for December 11, 2001 in Bismarck, North Dakota.

The Complaint specifically advised the Respondent that an answer
must be filed "no later than August 14, 2001" and that "a failure
to file an answer or respond to any allegation of this complaint
will constitute an admission. See 5 C.F.R. § 2423.20(b)."
Respondent did not file an answer, either in person or by mail,
within the required period or at any time thereafter.

Since Respondent failed to answer the instant Complaint, Counsel
for the General Counsel filed a Motion for Summary Judgement on
September 17, 2001. Respondent also failed to file any response to
the General Counsel's Motion for Summary Judgement within the 5 day
time period provided for in the Regulations. See 5 C.F.R. §
2423.27(b).

No answer was received from the Respondent nor has the
Respondent acknowledged receipt of any of the above-mentioned
documents. Accordingly, Respondent has admitted all of the
allegations of the Complaint. Department of Veterans Affairs
Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1594
(1996).

(b) Answer. Within 20 days after the date of service of
the complaint, . . . the Respondent shall file and serve, . . . an
answer. . . . Absent a showing of good cause to the contrary,
failure to file an answer or respond to any allegation shall
constitute an admission.

In this case the Respondent has not filed an answer as required
by the Regulations. Furthermore, Respondent has not filed any
response to the Motion for Summary Judgement. Accordingly, there
are not disputed factual or legal issues in this case.

Consequently, it can only be found that the Respondent has
admitted that it implemented a housing rental rate increase
affecting bargaining unit employees represented by the Union,
without providing the Union with notice and an opportunity to
bargain over the change. Further Respondent has admitted that it
did not respond to the Union's August 18, 2000 request to
negotiate. Thus, Respondent violated section 7116(a)(1) and (5) of
the Statute as alleged.

Counsel for the General Counsel proposed a recommended remedy
requiring the Respondent to rescind the increase in rents; to
effect a further decrease in rental rates charged to unit employees
for a period of time necessary to offset the difference between the
unlawfully implemented rental increase and the former rents until
such time as the effected employees have been made whole; to notify
and, upon request, negotiate with the Union concerning any proposed
change in rental rates to the extent required by the Statute and to
post an appropriate Notice To All Employees signed by the Director,
Indian Health Service, Standing Rock Public Health Service
Hospital, Fort Yates, North Dakota. It is noted that this issue was
recently litigated in Department of Health and Human Services,
Public Health Service, Indian Health Service, Quentin N. Burdick
Memorial Health Care Facility, Belcourt North Dakota, OALJ
01-38, CH-CA-00465 (June 20, 2001)(exceptions pending before the
Authority) and a similar remedy was recommended by the
Administrative Law Judge. Under the circumstances of this case, it
is found that the proposed remedy does effectuate the purposes and
policies of the Statute.

Accordingly, it is recommended that the Authority grant the
General Counsel's Motion for Summary Judgement and issue the
following Order:

ORDER

Pursuant to section 2423.41(c) of the Authority's Rules and
Regulations and section 7118 of the Federal Service
Labor-Management Relations Statute, it is hereby ordered that the
Department of Health and Human Services, Public Health Service,
Indian Health Service, Standing Rock Public Health Service
Hospital, Fort Yates, North Dakota, shall:

1. Cease and desist from:

(a) Failing to give notice and refusing to bargain with the
Laborers' International Union of North America, Local 580, AFL-CIO,
concerning the increase in rents that it charged unit employees
beginning March 12, 2000.

(b) Unilaterally implementing changes in working conditions of
its unit employees government-provided housing without first
providing the Laborers' International Union of North America, Local
580, AFL-CIO, with notice of the change and an opportunity to
bargain over the change to the extent required by the Federal
Service Labor-Management Relations Statute.

(c) Failing to respond to the Laborers' International Union of
North America, Local 580, AFL-CIO, request to negotiate over the
increase in housing rental rates for bargaining unit employees.

(d) In any like or related manner, interfering with, restraining
or coercing its employees in the exercise of their rights assured
by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate
the purposes and policies of the Federal Service Labor-Management
Relations Statute:

(b) Effect a further decrease in rental rates charged bargaining
unit employees for a period of time necessary to offset the
difference between the unlawfully implemented rate and the former
rate until such time as the affected employees have been made
whole.

(c) Notify, and upon request, negotiate with the Laborers'
International Union of North America, Local 580, AFL-CIO,
concerning any proposed change in rental rates.

(d) Post at the Standing Rock Public Health Service Hospital,
Fort Yates, North Dakota, copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the Director, Standing Rock
Public Health Service Hospital, Fort Yates, North Dakota, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notice are not altered, defaced
or covered by any other material.

(e) Pursuant to section 2423.41(e) of the Authority's Rules and
Regulations, notify the Regional Director, Chicago Regional Office,
Federal Labor Relations Authority, in writing, within 30 days from
the date of this Order, as to what steps have been taken to comply
herewith.

Issued, Washington, D.C., October 9, 2001.

________________________

SUSAN E. JELEN

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS
AUTHORITY

The Federal Labor Relations Authority has found that the
Department of Health and Human Services, Public Health Service,
Indian Health Service, Standing Rock Public Health Service
Hospital, Fort Yates, North Dakota violated the Federal Service
Labor-Management Relations Statute, and has ordered us to post and
abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail to provide the Laborers' International Union of
North America, Local 580, AFL-CIO, the exclusive representative of
our employees, with notice concerning increases in rental rates
that were implemented/charged on March 12, 2000.

WE WILL NOT unilaterally implement changes in working conditions
of unit employees' government-provided housing without first
providing the Laborers' International Union of North America, Local
580, AFL-CIO, with notice of the change and an opportunity to
bargain over the change to the extent required by the Federal
Service Labor-Management Relations Statute.

WE WILL NOT fail to respond to the Laborers' International Union
of North America, Local 580, AFL-CIO, request to negotiate over the
increase in housing rental rates for bargaining unit
employees.

WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
Statute.

WE WILL rescind the March 12, 2000 increase in rental rates for
government-owned housing rented by bargaining unit
employees.

WE WILL effect a further decrease in rental rates charged
bargaining unit employees for a period of time necessary to offset
the difference between the unlawfully implemented rate and the
former rate until such time as the affected employees have been
made whole.

WE WILL notify, and upon request, negotiate with the Laborers'
International Union of North America, Local 580, AFL-CIO,
concerning any proposed change in rental rates for bargaining unit
employees.

___________________________________

(Respondent/Activity)

Dated: _______________By:
____________________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material.

If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate with
the Regional Director, Chicago Regional Office, 55 W. Monroe, Suite
1150, Chicago, Illinois 60603, and whose telephone number is
(312)353-6306.